Morris v. Chicago, M. & St. P.R. Co.

• Citation: 26 F. 22
• Parties: MORRIS, Adm'r, etc., v. CHICAGO, M. & ST. P.R. CO. (Three Cases.)
• Decision Date: 01 January 1885
• Court: U.S. District Court — Northern District of Iowa

26 F. 22

MORRIS, Adm'r, etc., v. CHICAGO, M. & ST. P.R. CO. (Three Cases.)

United States Circuit Court, N.D. Iowa.

November Term, 1885

W. H Foster and G. L. Johnson, for plaintiff.

Burton Hanson and W. J. Knight, for defendant.

SHIRAS J., (charging jury.)

J. H Morris, as administrator of the estate of Martha J. Whitmer and as administrator of the estate of Floyd Whitmer, and as administrator of the estate of Matie Whitmer, brings three separate actions against the Chicago, Milwaukee & St. Paul Railroad Company to recover the damages which, it is alleged were caused to the estates of the three persons named, by the death of said persons; they having been killed in a collision between a wagon in which they were riding and a train upon defendant's road, it being claimed by plaintiff that the collision, and consequent death of said persons, was due to the negligence of the defendant. Under the statute law of Iowa, if a person is killed through an accident caused by negligence on part of another, the pecuniary damages caused to his estate by his death may be recovered in a suit by the administrator of his estate; and these actions have been brought under the provisions of this statute by the present plaintiff, as administrator of the estate of the three persons named, it not being disputed that they are dead, and that plaintiff has been legally appointed administrator of their separate and several estates. As the death of the three persons resulted from one and the same accident, and as the right of recovery in each case is based upon the same allegations, the court, for convenience sake, has ordered the three causes to be consolidated for the purposes of this trial before you, and hence all three cases are now submitted to you for your determination.

It appears from the evidence that the collision between the wagon and train in question took place upon Sunday, and some question has been made in regard to the effect this fact might have upon the rights of the parties. If it were true that the railway company had no right to run its train over its road on Sunday, it would be equally true that Mr. Whitmer and his family had no right, so far as the evidence shows, to be driving in a wagon along the highway. So far as the rights of the parties that are to be determined in this controversy are concerned, the fact that the collision occurred on Sunday has no effect thereon. The case is to be determined without reference to that fact, upon the issues set forth in the instructions given you by the court, which alone are submitted to you.

Under the laws of this state, the railways and the public highways may be lawfully built, so as to intersect or cross each other upon the same level. The rights, duties, and obligations of the railroads, and of travelers upon the intersecting highways, are mutual and reciprocal. Both parties are charged with the duty of keeping a careful lookout for danger, and the degree of diligence to be exercised on either side is such as a prudent man would exercise, under the circumstances, in endeavoring fairly to perform his duty. At points where the line of a railroad crosses a wagon-road upon the same level, the trains upon the one, and the teams upon the other have each a legal right to pass over the crossing or place of intersection, and each have the right to require the exercise of due care on part of the other to avoid a collision. From the greater speed of the railway trains, the greater difficulty in stopping the same, and the requirements of public travel thereon, it is not expected that the train shall stop and give precedence to an approaching wagon. It is the duty of the wagon to wait for the train, as the train has the preference and the right of way. What is meant by this is that when a train and a wagon are approaching a crossing at the same time, it is the duty of the wagon to halt, and allow the train to pass over the crossing before going upon the same. In order that the wagon may thus halt in order to give preference to the train, it is the duty of the train to give due warning of its approach, so that the wagon may stop and allow the train to pass. Such warning must be reasonable and timely. The object of the warning is to secure a clear and unobstructed track at the crossing, so that the train may pass in safety, not only as regards itself, but also as to persons lawfully upon the highway. The warning, therefore, should be reasonably sufficient to accomplish the object, and what constitutes reasonable and timely warning depends upon circumstances. A warning that would be entirely reasonable and sufficient under one set of circumstances, may be wholly inadequate under other circumstances. If, at a given crossing, there are obstacles that obscure or interfere with the view along the railroad, or that may prevent the hearing, by those approaching the crossing, of the sound of the coming train, or of the whistle or bell upon the engine, or if a train is being run at a high rate of speed, these facts, or either of them, may require the exercise of greater precautions on part of the railway company in giving warning of the approach of the train than would be required in the absence of such circumstances. What is required of the company is that, in view of the speed at which the train is being run, and of the nature and surroundings of the crossing about to be passed, such reasonable and timely warning of the coming of the train shall be given as will enable teams and persons upon the highway, by the exercise of due care and watchfulness upon their part, to avoid a collision with the train, and to leave the crossing free and unobstructed for the passage of the train over the same. By the express provisions of the statute of Iowa, it is made the duty of the railway companies to have upon each locomotive used in the state a bell and whistle, and to cause the whistle to be twice sharply sounded at least 60 rods before a highway crossing is reached, and after the whistle is sounded the bell is to be kept ringing until the crossing is passed, and in case of a failure so to do, the company is liable for all damages sustained by any person by reason of the neglect in not giving such warning of the approach of the train. Under this statute it is the duty of the company to sound the whistle and ring the bell, as provided in the statute, at all highway crossings. In addition thereto, the company may be required to take further precautions to give timely warning of the approach of its trains, if, as I have already said to you, the circumstances are such that the sounding of the whistle and ringing of the bell, as provided for in the statute, would not alone be sufficient to give timely warning of the approach of the train.

On the other hand, persons who are about to cross a railroad track are bound, on their part, to exercise ordinary care and diligence to ascertain whether a train is approaching, and the precaution to be taken by them will vary according to circumstances. They know that the crossing is a place of danger; that a train may come by at any moment; and they are bound to make a vigilant use of their senses of sight and hearing in order to ascertain if a train is approaching. If the nature and surroundings of the crossing are such that an approaching train cannot be readily seen or heard, this fact calls for the exercise of greater watchfulness and to taking of greater precaution on part of travelers who are about to cross the track in a wagon. It is the duty of the traveler to use proper care to ascertain whether he can safely pass upon and over the railway track. He is not justified in attempting to pass over the track if a train is approaching the crossing at such a rate of speed as to tender a collision possible. In order to ascertain whether he can with safety attempt to pass over the crossing it is his duty to exercise ordinary care and diligence to ascertain whether a train is or is not approaching; and if he fails to do so, and is injured in consequence thereof, he cannot recover therefor, even though the company may also have been guilty of negligence on its part.

In the case now on trail it is not questioned that on the second day of November, 1884, one David W. Whitmer, with his wife, Martha J. Whitmer, his son, Floyd Whitmer, and daughter, Matie Whitmer, was passing in a wagon along the public highway which intersects or crosses the railway track of the defendant at a point about one mile east of the station of Elwood, in Clinton county, in this state, and that while upon the crossing a collision occurred with a train passing over defendant's road, which collision resulted in the death of said Martha J., Floyd, and Matie Whitmer.

The first and principal questions upon which the parties are at issue, and which you are required to determine, are-- First was said collision caused by negligence on part of the defendant company, or of its employes in charge of said train? And,...